SQKB and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 82

SQKB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 82 (4 February 2025)
Applicant/s:  SQKB
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9681

Tribunal:Senior Member Lyford
Place:Perth
Date:4 February 2025

Decision:The Tribunal affirms the decision under review.

...................[SGD]............
Senior Member Lyford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 35 year old citizen of Afghanistan – extent of impediments if returned to Afghanistan – Non-Revocation Decision is affirmed
LEGISLATION
Children and Community Services Act 2004 (WA) - s 37
Migration Act 1958 (Cth) ss 15, 189, 197C(1), 197C(3), 198, 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Criminal Code Compilation Act (WA) ss 220, 392(d), 392(2)
CASES
Djalic v Minister for Immigration (2004) 139 FCR 292
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 4(1), 5.1, 5.1(3), 5.2, 5.1(3), 5.2(4), 7, 7(2), 8, 8.1(1), 8.1(2), 8.1.1, 8.1.1(e), 8.1.1(1), 8.1.1(1)(c), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.3, 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9.1(1), 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.3(1)
Australian Institute of Health and Welfare, Illicit drug use, AIHW, Australian Government, accessed 3 February 2025
Australian Federal Police, Drug crime, AFP, accessed 3 February 2025
Betterhealth Victoria, How drugs affect your body, Victorian Government, accessed 3 February 2025.
Department of Health and Aged Care, What are the effects of taking drugs?, Australian Government, accessed 3 February 2025
Australian Parliament House, Social and personal impact on families of illicit drug use, Australian Government, accessed 3 February 2025
Statement of Reasons
INTRODUCTION

The Applicant has sought review of a decision of a delegate of the Respondent, dated 8 November 2024, not to revoke the cancellation of his Refugee (Class XB) (subclass 200) visa under s 501CA(4) of the Migration Act 1958 (Migration Act).[1]
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
[1] Exhibit 2, G4, pages 28 – 42.
The Applicant is a 35 year old citizen of Afghanistan[2] who was born in Iran as an Afghani refugee.[3]
[2] Exhibit 2, G11, page 69.
[3] Exhibit 1.
The Applicant first arrived in Australia on 11 September 2009, aged 19, as the holder of a Class XB Subclass 200 Refugee visa (visa).[4] The Applicant came to Australia from Iran with his parents, three younger sisters and one younger brother.
[4] Exhibit 2, G15, page 103.
First visa cancellation – 2019
On 15 August 2019, the Applicant (then aged 29) was convicted of Aggravated Robbery under s 392(d) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) and sentenced to 16 months imprisonment.[5]
[5] Exhibit 2, G6, page 44; G8, page 62.
On 1 November 2019, the Department of Home Affairs (Department) notified the Applicant that his visa was cancelled under s 501(3A) of the Migration Act on character grounds due to his conviction and sentence for Aggravated Robbery on 15 August 2019.[6]
[6] Exhibit 2, G12, page 84.
Following the Applicant's request for revocation, on 29 May 2020, the Department notified the Applicant of its decision to revoke the cancellation of his visa and provided him with a formal “warning” that any future offending may result in his visa being cancelled on character grounds.[7] The details of the Aggravated Robbery are set out below under the heading “Applicant’s Conduct and Offending”.
[7] Exhibit 2, G13, pages 92 - 93.
Second visa cancellation - 2024
On 23 January 2024, the Applicant (then aged 34) was convicted in the Perth District Court of Western Australia of Possess Methylamphetamine With Intent to Sell/Supply, under the Criminal Code, and sentenced to two years imprisonment.[8] On the same date, the Applicant was also convicted of Possession of Prohibited Drugs with Intent to Sell or Supply, under the Criminal Code, and sentenced to six months imprisonment.[9]
[8] Exhibit 2, G6, page 44; G7 page 54.
[9] Exhibit 2, G6, page 44.
On 19 April 2024, the Department mandatorily cancelled the Applicant's visa, for a second time, under s 501(3A) of the Act due to his drug convictions on 23 January 2024. This was because the Applicant had a “substantial criminal record” because he was sentenced to a term of imprisonment of 12 months or more.[10] The Department notified the Applicant of the decision on the same date.[11]
[10] Exhibit 2, G16, pages 104 – 111.
[11] Exhibit 2, G16, page 104.
On 24 May 2024, the Applicant made representations, within the prescribed timeframe, to have the cancellation revoked under s 501CA of the Migration Act.[12]
[12] Exhibit 2, G10 – G11, pages 65 – 83.
On 16 August 2024, the Department invited the Applicant to comment on further information which may be considered when making the decision whether to revoke the decision to cancel the Applicant's visa.[13] The Applicant did not respond.
[13] Exhibit 2, G14.
On 8 November 2024, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.[14] The Applicant was notified of the Respondent’s decision on 12 November 2024.[15]
[14] Exhibit 2, G4, pages 28 – 42.
[15] Exhibit 2, G3, page 19.
On 20 November 2024, the Applicant applied to the Tribunal for review of the Respondent’s decision, dated 8 November 2024.[16]
[16] Exhibit 2, G2.
ISSUES
The issues to be decided by the Tribunal are whether:
(a)the Applicant passes the “character test” in s 501(6) of the Migration Act; and, if not,
(b)the Tribunal is satisfied that there is “another reason” why the visa cancellation decision should be revoked under s 501CA(4) of the Migration Act.[17]
[17] See s 501CA (4) of the Migration Act 1958 (Cth).
HEARING AND EVIDENCE
The Applicant attended the hearing by MS Teams, on 20 January 2025, and gave evidence in English. A Farsi interpreter was provided, at the Applicant’s request, but his services were ultimately not needed or used.
At the hearing, the following documents were marked as exhibits:
(a)Applicant’s Bundle of Documents, lodged by the Applicant on 14 January 2025 (Exhibit 1);
(b)Hearing Book, comprised of HB1 – HB543, lodged by the Respondent on 9 and 15 January 2025 (Exhibit 2).
Where relevant, the above evidence is referred to in the Tribunal’s reasons below.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory visa cancellation – character test
Under s 501(3A) of the Migration Act, the Minister must cancel the visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b), or (c); or
(ii) ….; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
The “character test” is set out in s 501(6) of the Migration Act and provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7));
(emphasis added)
Section 501(7)(c) of the Migration Act provides that for the purpose of the character test, a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Power to revoke visa cancellation decision
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice of the decision setting out the original decision,[18] particulars of the relevant information[19] and invite the person to make representations to the Minister about revocation of the original decision.[20]
[18] Migration Act 1958 s 501CA(3)(a)(i).
[19] Migration Act 1958 s 501CA(3)(a)(ii).
[20] Migration Act 1958 s 501CA (3)(b).
Section 501CA(4) of the Migration Act provides that, the Minister may revoke the original decision if:
(a)representations have been made by the applicant for review in accordance with an invitation to the applicant to make such representations about revocation of the cancellation;[21] and
(b)the Minister is satisfied that:
(i) the person passes the “character test”;[22] or
(ii)there is “another reason” why the original decision should be revoked.[23]
[21] Migration Act 1958 s 501CA(4)(a).
[22] Migration Act 1958 s 501CA(3)(b)(i).
[23] Migration Act 1958 s 501CA(3)(b)(ii).
Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the “character test” under s 501CA(4)(b)(i) of the Migration Act and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) of the Migration Act if there is “another reason” why the original decision should be revoked.[24]
[24] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
A decision under s 501CA(4) of the Migration Act involves an assessment an evaluation of the factors for and against revoking the cancellation.[25]
[25] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.
Direction No. 110
As stated above, the Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is “another reason” why the original decision should be revoked, reasonably and on a correct understanding of the law.[26] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[26] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.[27]
[27] Direction No. 110 paras. 2-3.
The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[28]
[28] Direction No. 110 para. 5.1(4).
Objectives
Paragraph 5.1 of Direction No. 110 sets out of the Migration Act. Specifically, paragraph 5.1(3) of Direction 110 provides:
Under subsection 501(3A) of the [Migration] Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the [Migration] Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Principles
Paragraph 5.2 of Direction No. 110 sets out the “principles” which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” and are expressed as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No. 110, the Tribunal must take into account the “primary considerations” listed in paragraph 8 of Direction No. 110, and the “other considerations” listed in paragraph 9 of Direction No. 110, where relevant to the decision.[29]
[29] Direction No. 110 para. 6; see also the definition of ‘decision-maker’ in para. 4(1) of Direction No. 110, which includes the Tribunal.
Primary considerations – paragraph 8 of Direction No. 110
In making a decision under s 501CA(4) of the Migration Act, the five “primary considerations” the Tribunal must take into account are:[30]
(i)        protection of the Australian community from criminal or other serious conduct:
(ii)       whether the conduct engaged in constituted family violence;
(iii)      the strength, nature and duration of ties to Australia;
(iv)      the best interests of minor children in Australia; and
(v)expectations of the Australian community.
[30] Direction No. 110 para. 8.
Other considerations – paragraph 9 of Direction No. 110
The “other considerations” the Tribunal must take into account, as far as they are relevant, include (but are not limited to):[31]
(i)        legal consequences of the decision;
(ii)       extent of impediments if removed; and
(iii)      impact on Australian business interests.
[31] Direction No. 110 para. 9.
Primary & other considerations – further guidance
Further guidance as to how a decision-maker is to apply the considerations in
Direction No. 110 can be found in paragraph 7, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
APPLICANT’S CONDUCT AND OFFENDING
A summary of the Applicant’s offending is set out in the table in Annexure A.
2010 to 2018 offending
The Applicant has numerous convictions for driving/traffic related offences between 30 November 2010 and 24 December 2018, for which he has received fines ranging from $150 to $1,000. He has also had his licence disqualified on numerous occasions: see Annexure A attached.
2019 offending
Aggravated Robbery – 15 August 2019
On 15 August 2019, the Applicant was convicted of Aggravated Robbery, under s 392(2) of the Criminal Code, which occurred on 10 March 2019. The (redacted) remarks of the sentencing judge describe the circumstances of the robbery.[32] The robbery was deemed “aggravated” because the Applicant was ‘in company”. That is, several days prior to the offence, the Applicant and his co-offender (the Applicant’s ex-partner and mother of his two children) had stolen a car and were living in that car (i.e. they were homeless and stole the car to have something to sleep in). On 10 March 2029, the Applicant and his co-offender attempted to steal items (food) from a store because they were hungry and had no money to buy food. When they were confronted by a store worker who was trying to retrieve the stolen items, the Applicant and his co-offender resisted and started throwing items. Then they punched and pushed the store worker. Other members of the public became involved and, when the Applicant and his co-offender tried to leave, their car was boxed in by these people.[33]
[32] Exhibit 2, G8, pages 58-60.
[33] Exhibit 2, G8, pages 59 – 60.
The sentencing judge noted the goods the Applicant and his co-offender were stealing was of modest value because he and his co-accused were hungry and that the violence was used by the Applicant and his co-accused was because he was trying to get the food back, rather than him simply being violent because they “gratuitously wanted to hurt someone”, but, noting the vulnerability of store workers to these sorts of offences as they generally work alone on the weekend and that the offence put other members of the public at risk.[34] In relation to the “seriousness” of the Aggravated Robbery, the sentencing judge remarked:[35]
….The offence overall is not the most serious sort of aggravated robbery that this court sees. Nevertheless, it remains a serious offence.
(emphasis added)
[34] Exhibit 2, G8, page 67.
[35] Exhibit 2, G8, page 67.

The Applicant was sentenced to a term of imprisonment of 16 months for the Aggravated Robbery.[36]
[36] Exhibit 2, G6, page 44; G8, page 62.
As stated in the above Background above, it was the Applicant’s conviction for aggravated robbery and sentence of 16 months imprisonment, on 15 August 2019, that resulted in his visa being cancelled for the first time on character grounds under s 501(3A) of the Migration Act.
However, as stated above, following the Applicant’s request for revocation, on 29 May 2020, the Department decided to revoke the cancellation of the Applicant’s visa (for the first time) and provided him with the following formal warning:
Warning: if you engage in further criminal or serious conduct, this may again result in your visa being cancelled on character grounds.[37]
[37] Exhibit 2, G13, page 92.
In her sentencing remarks, the sentencing judge mentions the driving/traffic related offending (referred to above at [33]) and states[38]:
Although they’re traffic offences, the number of them suggest that you don’t think the law should apply to you,
highlighting the Applicant’s apparent disregard for the law.
[38] Exhibit 2, G8, page 58.
Other offending – 20 August 2019
On 20 August 2019, the Applicant was convicted and sentenced as follows:
·     Steal motor vehicle and drives or assumes control without consent – sentenced to eight months imprisonment (concurrent);
·     No authority to drive – suspended – (six counts) and suspended to five months imprisonment for each count (concurrent);
·     Reckless driving – sentenced to five months imprisonment (concurrent);
·     Stealing – sentenced to four months imprisonment; and
·     Stealing – (three counts) and fined $500.00 for each count: see Annexure A attached.
2023 offending
On 23 January 2024, the Applicant was convicted in the Perth District Court of Western Australia of Possess Methylamphetamine With Intent to Sell/Supply, under the Criminal Code, and sentenced to two years imprisonment.[39] On the same date, he was also convicted of Possession of Prohibited Drugs With intent to Sell or Supply, under the Criminal Code, and sentenced to six months imprisonment, to be served cumulatively.[40]
[39] Exhibit 2, G6, page 44; G7, page 54.
[40] Exhibit 2, G6, page 44; G7, page 54.
This offending occurred, on 7 January 2023 (2023 Offending), when the Applicant attempted to transport three packages containing methylamphetamine, cannabis and two pipes while visiting a detainee in Yongah Hill Immigration Detention Centre. There was 6.84 grams of methylamphetamine at a purity level of approximately 85 per cent, and 49.2 grams of cannabis.[41] In the police interview, the Applicant said he was asked by an associate to deliver the prohibited drugs to a mutual friend in the detention centre, and he told psychologist Ms Claire Lynn that he received $2,000 for his role.[42]
[41] Exhibit 2, G7, page 49.
[42] Exhibit 2, G7, pages 49 – 50.
In his sentencing remarks, dated 23 January 2024, the sentencing judge, his Honour Judge Massey, describes the circumstances of the 2023 Offending as follows:[43]
At about 5.20pm on 7 January 2023, you went to Yongah Hill Immigration Detention Centre for a scheduled visit with a detainee. That detention centre is a Commonwealth place. Before gaining entry, you intercepted by police officers from Northern Police Station. After being cautioned, you were searched and hallway through the search you told the officers that you were in possession of three packages containing cannabis, methylamphetamine and two pipes.
You removed the two packages from inside your underwear and handed the over to police. Each of the packages was tightly wrapped in plastic and tissue paper. Upon analysis, one of the packages contained 6.84 grams of methylamphetamine at a purity level of approximately 85 per cent. The other two packages contained a total of 49.2 grams of cannabis.
You were arrested and taken to Northern Police Station where you participated in an interview and you made admissions, including that you were contacted by a female associate and asked to deliver prohibited drugs to a mutual friend at Yongah Hill. You agreed to undertake the delivery and he female then dropped off the cannabis and methylamphetamine to your address, that you wrapped the drugs as well as the two pipes using cling wrap and tape into three separate packages.
[43] Exhibit 2, G7, pages 49 – 51.
You denied receiving anything in turn for transporting the drugs.
In his sentencing remarks, the sentencing judge described the “seriousness” of the 2023 Offending as follows[44]:
….Now, offences like this are very serious. That’s partly reflected in the maximum penalty that applies..…The maximum penalty for possession of methamphetamine with intent to sell or supply it to another is 25 years’ imprisonment or a fine of $100,00 or both, and the maximum penalty for possession of cannabis with intent to supply it to another is a fine of $20,000 or imprisonment for ten years or both.
I also need to determine the seriousness of the offending by taking into account the circumstances of the commission of the offence and any aggravating factors – those are things that’ll make it worse – and any mitigation factors, which are things in your favour. The main aggravating factor here, the main thing that makes this worse, is that you were taking [the drugs] into a detention centre….you were taking prohibited substances into [an] area where people are lawfully detained, and therefore compromising the safety and security of the facility itself.
When you take things into a detention centre, you’re taking things into an area which can be volatile, it can be unpredictable, and the management of detention centres depends upon being able to maintain good discipline in order to control the detainees. There’s an obvious risk that taking drugs, particularly like methylamphetamine, into that environment will, firstly, make controlling the detainees more difficult, and secondly, increase the risk or violence or other offending within that volatile environment.
….
I’m sentencing you on the basis that you were a courier of the drugs, but the drugs themselves were the methylamphetamine, and it….was of an extremely high purity. You clearly had a trusted role to transport those drugs into the facility…
Ultimately, the taking [of drugs] into the Commonwealth detention centre, I think, does make the offending very serious.
(emphasis added)
[44] Exhibit 2, G7, pages 50 - 51.
The sentencing judge noted that there was a “commercial” aspect to the 2023 Offending because the Applicant told the psychologist Ms Lynn that he expected to be paid $2,000 for his role in delivering the drugs to the detainee (although, in his oral evidence at hearing, the Applicant told the Tribunal that he never ultimately received payment for delivering the drugs because he was intercepted by the police before they were delivered).[45]
[45] Exhibit 2, G7, page 50.
ISSUE 1 - DOES THE APPLICANT PASS THE “CHARACTER TEST”?
Under s 501(6)(a) of the Migration Act, a person does not pass the “character test” if the person has a “substantial criminal record”, as defined in s 501(7) of the Migration Act.
Relevantly, a person has a “substantial criminal record” for the purpose of s 501(6)(a) of the Migration Act, if “the person has been sentenced to a term of imprisonment of 12 months or more”: s 501(7)(c) of the Migration Act. Failure to pass the “character test”, in s 501(6) of the Migration Act, arises as a matter of law.[46]
[46] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
Because the Applicant was sentenced, on 23 January 2024, to two years imprisonment for the offence Possess Methylamphetamine With Intent to Sell/Supply and six months imprisonment for the offence Possession of Prohibited Drugs with Intent to Sell or Supply, he has a “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act, and for the purpose of the “character test” in s 501(6)(a) of the Migration Act and, therefore, fails the character test as a matter of law.
ISSUE 2 - IS THERE “ANOTHER REASON” WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Since, for the above reasons, the Tribunal is not satisfied that the Applicant passes the “character test” in s 506(1) of the Migration Act, the Tribunal must determine whether, having regard to the primary considerations and other considerations contained in paragraphs 8 and 9 of Direction No. 110, respectively, there is “another reason” why the visa cancellation decision should be revoked. That is, the statutory power to revoke will only be enlivened if there is “another reason” why the visa cancellation decision should be revoked.[47]
Primary considerations – paragraph 8 of Direction No. 110
[47] Migration Act 1958 (Cth) s 501CA(4)(b)(ii)
(i) Protection of the Australian Community
The first primary consideration, in paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community. Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[48]
[48] See also Direction No. 110 para. 8(1).
Paragraph 8.1(2) of Direction No. 110 provides that decision-makers should also give consideration to:
(i)the nature and seriousness of the non-citizen’s criminal offending or other conduct to date: paragraph 8.1.1 of Direction No. 110; and
(ii)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction No. 110.
(i) Nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1) of Direction No. 110 provides:
(1)In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes and conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed.
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
…..
c)…..the sentence imposed by the courts for a crime or crimes;
d)the impact of offending on any victims of offending or other conduct and their family,….
e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
…..
h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
(emphasis added)
For the following reasons, the nature and seriousness of all the Applicant’s offending to date can, in the Tribunal’s view, only be objectively characterised as “very serious”.
Sentencing - paragraph 8.1.1(1)(c) of Direction No. 110
As stated above, on 23 January 2024, the Applicant was sentenced to a term of imprisonment of two years for Possess Methamphetamine With Intent to Sell/Supply and a term of imprisonment of six months for Possession of Prohibited Drugs with Intent to Sell or Supply (i.e. cannabis) under the Criminal Code by the District Court of Western Australia[49]: paragraph 8.1.1(1)(c) of Direction No. 110.
[49] Exhibit 1, G5 at page 44.
Sentences involving terms of imprisonment are the “last resort” in a sentencing hierarchy.[50] Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this should be objectively viewed as a reflection of the “seriousness” of the offences involved. In relation to the above offending, the sentencing judge found that a term of imprisonment was needed “for personal and general deterrence” and appropriate because of the “seriousness” of the offending.[51] Further, the sentencing judge did not accept that the Applicant’s sentence should be suspended because the “offending was serious” and there was a “significant need for personal deterrence” because the Applicant was found not to be genuinely remorseful and had not displayed “appropriate victim empathy.”[52]
[50] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[51] Exhibit 1, G5, pp 54 -55.
[52] Exhibit 1, G5, p 56.
The Tribunal notes that the Full Federal Court held in Djalic v Minister for Immigration (2004) 139 FCR 292 at [75] that deterrence of criminal conduct is a matter concerned with “protection of the Australian community”: see also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [29].
Frequency of offending and trend of increasing “seriousness” – paragraph 8.1.1(1)(e) of Direction No. 110
The Applicant's criminal history demonstrates a high frequency of offending and consistent and complete disregard for the law over a prolonged period, with a trend of increasing “seriousness”: paragraph 8.1.1(1)(e) of Direction No. 110.
As stated above, the Applicant was convicted with a number of driving/traffic offences between 30 November 2010 and 24 December 2018 for which he received fines ranging from $150 to $1000. He has also had his licence disqualified on a number of occasions: see Annexure A attached. Paragraph 8.1.1 of Direction No. 110 does not limit the range of offences that may be considered “serious”. The Tribunal considers the Applicant’s driving/traffic offences as “serious”, especially given the amount of convictions over a number of years, demonstrating a clear disregard for Australian laws and the safety of the Australian community, especially other road users: Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]- [45] and QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51].
As stated above, on 20 August 2019, the Applicant was convicted and sentenced for various stealing and driving offences (see [40]), all of which the Tribunal considers are either “serious” or “very serious” for the purpose of paragraph 8.1.1 of Direction No. 110.
On 15 August 2019, the “seriousness” of the Applicant’s offending escalated to Aggravated Robbery (which offending the sentencing judge described as “serious”) for which he was sentenced to a term of imprisonment of 16 months: paragraph 8.1.1(1)(c) and 8.1.1(e) of Direction No. 100 and see [37] to [39] above.
Following the Aggravated Robbery, the Applicant’s visa was mandatorily cancelled but, following representations being made by the Applicant to the Respondent, the visa cancellation was revoked and the Applicant was issued with a formal written warning about the consequences of further offending in relation to his immigration status: paragraph 8.1.1(1)(h) of Direction No. 110 and see [38] above. Despite being formally warned about the consequences of further offending, the Applicant then committed further, even more “serious’, offending, namely the 2023 Offending, for which the Applicant received a two and half year sentence: paragraph 8.1.1(1)(e) and 8.1.1(1)(h) of Direction No. 110 and see [42] to [45] above. The Tribunal considers that the 2023 Offending should be viewed “very seriously”, given the context in which it occurred and the comments of, the sentencing judge, his Honour Judge Massey: see [42] to [45] above.
Cumulative effect of repeated offending – paragraph 8.1.1(1)(f) of Direction No. 110
The supply of illicit drugs has a profound and multifaceted impact on the wider Australian community, affecting individuals, families and society as a whole. That is, the supply of illicit drugs has far-reaching consequences that extend beyond individual “users” to affect the entire Australian community. The large expenditure on illicit drugs diverts resources from productive economic activities and places a significant burden on the health care system and law enforcement (i.e. it involved a significant use of police and court resources and, it follows, taxpayer funds, it fuels criminal activities and undermines social cohesion: paragraph 8.1.1(1)(f) of Direction No. 110.[53]
[53] Australian Institute of Health and Welfare, Illicit drug use, AIHW, Australian Government, accessed 3 February 2025; Australian Federal Police, Drug crime, AFP, accessed 3 February 2025; Betterhealth Victoria, How drugs affect your body, Victorian Government, accessed 3 February 2025; Department of Health and Aged Care, What are the effects of taking drugs?, Australian Government, accessed 3 February 2025; Australian Parliament House, Social and personal impact on families of illicit drug use, Australian Government, accessed 3 February 2025.
Conclusion – nature and seriousness of Applicant’s offending
Noting the frequency and duration of the Applicant’s offending, the trend in the increase of the “seriousness” of his offending and the cumulative effect of repeated offending, and, for the above reasons, the Tribunal considers that the nature and “seriousness” of the of Applicant’s offending to date can only be properly categorised, overall, as “very serious” and weighs strongly against revocation of the visa cancellation decision.
(ii)Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 110 states, in part:[54]
[54] See also Direction No. 110 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
(Emphasis added)
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[55]
Nature of the harm to individuals or the Australian community
[55] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.

As set out above, the supply of illicit drugs has severe negative impacts on the Australian community, affecting individuals, families and society generally. The supply if illicit drugs contributes directly to significant health problems. It places a massive burden on the healthcare system and causes immense suffering for individuals and their families. The drug supply chain can lead to various social issues such as increased family and community violence, child neglect, road trauma, disruption of family and social cohesion and elevated risk of victimisation and engagement in risky behaviours. The illicit drug trade imposes significant economic burdens on the Australia community (including law enforcement) and the drug supply chain is intrinsically linked to criminal activities and poses a threat to Australia’s national security: paragraph 8.1.2(1) of Direction No. 110.[56]
[56] Australian Institute of Health and Welfare, Illicit drug use, AIHW, Australian Government, accessed 3 February 2025; Australian Federal Police, Drug crime, AFP, accessed 3 February 2025; Betterhealth Victoria, How drugs affect your body, Victorian Government, accessed 3 February 2025; Department of Health and Aged Care, What are the effects of taking drugs?, Australian Government, accessed 3 February 2025; Australian Parliament House, Social and personal impact on families of illicit drug use, Australian Government, accessed 3 February 2025.
For the above reasons, and applying the “Principles” in paragraphs 5.2(3) and (7) of Direction No. 110 (see [27] above), the Tribunal considers that the harm that could be caused from future similar offending by the Applicant is so “serious” that even countervailing considerations (addressed below) are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa, noting that the “primary consideration”, in paragraph 8.1 of Direction No. 110 (i.e. “Protection of the Australian community”), is “generally to be given greater weight than other primary considerations”: paragraph 7(2) of Direction No. 110.
Likelihood of the non-citizen engaging in further criminal or serious conduct
As for the risk of reoffending, and the factors set out in paragraph 8.1.2(2)(b) of Direction No. 110, for the following reasons, the Tribunal considers that there remains a significant likelihood (which is real and unacceptable) of the Applicant reoffending which weighs against the revocation of the cancellation of his visa.
The Tribunal considers that the harm that would be caused by the Applicant's conduct, if it were to be repeated, is so “serious” that “any risk” it may be repeated is unacceptable, especially having regard to the Government’s view that the “Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases”: paragraph 8.1.2(1) of Direction No. 110. The Tribunal considers that the Applicant’s conduct constitutes conduct which falls squarely within paragraph 8.1.2(1) of Direction No. 110.
The Applicant's criminal record (as set out above at [32] to [45]) demonstrates a pattern of frequent offending over an extended period and a trend of increasing seriousness in the offending: paragraph 8.1.1(e) of Direction No. 110. The very nature of the Applicant's criminal history, and particularly its sustained nature, strongly indicates the likelihood of further offending. In relation to the 2023 Offending the sentencing judge remarked that Applicant was at risk of reoffending and noted that there is "nothing to suggest there are any rehabilitation or genuine remorse."[57] Further, in the sentencing remarks for the 2023 Offending the sentencing judge noted that whilst the Applicant expressed his remorse to the psychologist, there was nothing before the court to demonstrate that the expression of remorse was genuine, and that the psychological report suggested the Applicant did not have "too many concerns about [his] own drug taking the effect of drugs in the community."[58]
[57] Exhibit 2, G7, page 53.
[58] Exhibit 2, G7, pages 52 – 53.
The Applicant attributes the 2023 Offending on 7 January 2023 to friends that he contacted who were into drugs who lied to him and talked him into "doing a drop" for them.[59] He states that he takes full responsibility for his actions, that he was in a "dark place" after losing the care of his children to the Department of Communities (DOC) and his ex-partner of 7 years leaving him for another man.
[59] Exhibit 2, G11, page 79.
In his Request for Revocation of the mandatory cancellation of his visa, dated 24 May 2024 (Revocation Request), the Applicant provided the following explanation in relation to the 2023 Offending and his risk of future offending:[60]
I take full responsibility for my actions that led me to jail in saying that There was a chain of events that just put me in a dark place. In a real short period of time I lost my kids to DOC. It really broke me. Everyday I used to come home from work to my lovely kids and partner. Then I lost my partner she went to be with a different man and it just killed me, I was with her for 7 years and we had 2 kids and [I] got in contact with people who lied to me about lost of things and talked me into doing a drop for him.
…….
The biggest reasons that I might get in trouble again is to get in contact with my friends that do drugs and be away from family but now that I am older I realise how things are and I have a good vision of what I want to do. I just want to be a family man keep working. I am a panel Beater for 12 years. I want to open my own shop and wok with my brother in the shop.
73.Exhibit 1 (being the Applicant’s Bundle of documents, filed on 14 January 2025) include handwritten pre-hearing submissions of the Applicant (Pre-hearing submissions). In the Pre-hearing Submissions the Applicant submits the following in relation to his future risk of to the Australian community:
I won’t be a danger to the community:
In my life I have always been loving and caring towards everyone I know. I am not a violent person and I am against it. I love Australia and I know now that I am older and wiser and mature and I will not make the same mistakes again. I want to be a good dad to my boys and I want to have a great future in Australia. I will work hard to achieve my goals in life. I won’t be a risk to the community because I am done with this life of Drugs and crime and all these things that I have been thru has impacted me. I don’t want to risk getting deported ever in my life again all the stress these days is been hard for me. I am looking forward to the future here in Australia.
[60] Exhibit 2, G11, page 79.
(emphasis added)
In his oral evidence at the hearing, the Applicant told the Tribunal that, coming from a place like Iran where he “could get away with anything” and “pay off the police” to a country like Australia he did not understand Australian laws and the “seriousness” of his conduct/offending, but he now did. The Applicant described himself as “older”, “wiser”, “more mature” and that he would be a “different man” by the time he ended his prison sentence. The Applicant described the Aggravated Robbery, in March 2019, as happening at a time when he was homeless, living out of a car and in the “depths of despair” and that looking back on it he felt “ashamed”. The Applicant described his relapse following being released from prison for the Aggravated Robbery. He said he met up with a former prison mate and “used one day” with him and, within three months, was “using” every day and would “do anything to support his addiction”. In relation to the 2023 Offending, the Applicant said that, at that time, he had just broken up with his ex-partner and the mother of his two sons and was “addicted to heroin” and would do anything to fund his addiction.
In the Revocation Request, the Applicant said the following in relation to any courses or programs he has completed to avoid further offending:[61]
I was not required to do any programs but I have been applied for as many as I can and I been doing voluntary programs like NA [Narcotics Anonymous] and AA [Alcoholics Anonymous] when it’s available.
[61] Exhibit 2, G11, page 79.
In a letter, dated 9 January 2025, Elizabeth Lee, Acting Transitional Manager, Karnet Prison Farm states the following in relation to the Applicant’s attendance of Narcotics Anonymous program during his incarceration at Karnet Prison Farm:[62]
I write to confirm that [the Applicant] has attended 10 Narcotics Anonymous meetings at Karnet Prison Farm, between 2/11/2024. To 05/01/2025.
On behalf of Transitional Services at Karnet Prison Farm, I check the signing in book and record the number of attendances for Narcotic Anonymous meetings.
[62] Exhibit 1.
These are self-managed by the offenders.
The “Parole Review Report”, dated created on 18 September 2024 (and performed on 26 November 2024) (Parole Review Report) states the following in relation to treatment received by the Applicant whilst in Karnet Prison Farm:[63]
[The Applicant] has not participated in any short courses or voluntary programs during the current term of imprisonment.
It is noted, [the Applicant] has been waitlisted for the ADAPT Methylamphetamine LEAP program. [The Applicant] is participating in Narcotics Anonymous. He is yet to complete the twelve session program.
…..
[63] Exhibit 1, S3, page 14.
[The Applicant has not participated in any treatment programs during previous terms of imprisonment,…
The Applicant’s “Individual Management Plan”, created by the Department of Justice Western Australia on 18 November 2024 (and performed on 19 December 2024) (IMP) records that the Applicant’s “Parole - Earliest Release Date” is 12 March 2026 (and “Next Review Date” is 12 May 2025).[64] The IMP further records that, on 11 November 2024, the Prisoner Review Board (Parole Board) decided to deny the Applicant parole, for the following reasons:
1.[His] release plan does not include sufficient protective strategies to reduce risk to the safety of the community in that it does not include any way to adequately address [his] unmet intensive treatment needs.
2.[His] unmet treatment needs (consequential thinking and substance abuse) as evidenced by the nature of [his] current offences and [his] criminal history. The Board notes that [he has] not been assessed as suitable for any intensive treatment programs whilst in custody. The Board considers that [he] pose[s] an unacceptable risk the safety of the community. The Board encourages [him] to participate in voluntary substance abuse treatment programmes.
3.[His] criminal history including violence suggests a high risk of reoffending.
(emphasis added)
[64] Exhibit 1.
In his oral evidence at the hearing, the Applicant told the Tribunal that he had been applying for several rehabilitation courses and was on a waiting list for the program “Standing on Solid Ground”. However, it was very difficult to undertake rehabilitation courses when he kept getting moved from one prison to another. The Applicant said that he started by spending one to two months at Hakea Prison, he was then moved and spent four and a half months at Casuarina Prison, he was moved again and spent three to four months at Acacia Prison and moved again to Karnet Prison Farm, where he is currently incarcerated.
Based on the overall evidence, the Tribunal considers that the Applicant poses an unacceptable risk to the Australian community of committing further offences of engaging in other serious conduct: paragraph 8.1.2(1) and paragraph 8.1.2(2) of Direction No. 110.
The Tribunal acknowledges the Applicant's submission that now that he is older, he has a "good vision" of what he wants to do which is to be a family man and open his own panel beater business[65], that he has applied to as many programs as he can in prison, and has been doing voluntary programs (such as narcotics anonymous and alcoholics anonymous when it is available).[66] However, there is limited evidence before the Tribunal of the Applicant's rehabilitation to address his longstanding issues with illicit drug use and underlying cause of his serious conduct and offending.
[65] Exhibit 2, G11, page 79.
[66] Exhibit 2, G11, page 79.
As noted by the sentencing judge in relation to the 2023 Offending, drugs has been "the root cause of a lot of [the applicant's] offending"; he began using opium when he was 13 years old and he used it regularly from the age of 16 or 17, he also used cannabis, and started using methylamphetamine in around 2016 which escalated to weekly and then daily use.[67] The sentencing judge, in relation to the Applicant’s earlier conviction, on 15 August 2019, for Aggravated Robbery, also noted the Applicant's issues with drugs, stating:[68]
….Your problem obviously is drugs. You and your family migrated from Iran in 2009 after you’d completed high school there…you’ve worked as a panel beater here in Australia.
You said you first tired methylamphetamine in March 20198, so that’s a year prior to this, because your friends were using it. And by the time you committed this string of offences you were injecting it daily. When you used methylamphetamine you also tend to use cannabis.
You told the author of the pre-sentence report you tried heroin two or three times several years ago. But you told the police at the time of committing the offence that you were coming down from heroin. And when you were asked, “when was the last you’d used it”, you said, “Last night”. Either way, drugs is clearly the issue.
….
[67] Exhibit 2, G7, page 52.
[68] Exhibit 2, G8, pages 58-60.
….The truth is that if you don’t get the drugs out of your life for good you’ll simply spend time in prison. You very much run the risk of deportation while your family stay here.
As stated above, in the Parole Review Report (created on 18 September 2024) it is reported that the Applicant has “not participated in any short courses or voluntary programs during [his] current term of imprisonment”'[69] It is further reported that the Applicant has been waitlisted for the ADAPT Methamphetamine LEAP Program and that he is participating in Narcotics Anonymous, but that he has yet to complete the twelve session program.[70] The sentencing judge’s remarks, in relation to the 2023 Offending, record that the pre-sentence report for the sentencing has needs relating to substance misuse, problem-solving skills, pro-criminal beliefs, and association with people that he should not associate with and that he may benefit from counselling.[71]
[69] Exhibit 2, S3, page 14.
[70] Exhibit 2, S3, page 14.
[71] Exhibit 2, G7, page 54.
Significantly, in the IMP, the Parole Board decided to deny the Applicant parole because, among other reasons, he has “unmet treatment needs (consequential thinking and substance abuse”, he poses an “unacceptable risk the safety of the [Australian] community” and his “criminal history including violence suggests a high risk of reoffending”.[72]
[72] Exhibit 1.
The Tribunal affords the Applicant’s expressions of remorse and insight into his offending limited weight, especially given his criminal history (which demonstrates a frequency of offending over a long period and a trend of increasing seriousness: paragraph 8.1.1(1)(e) of Direction No. 110) and in circumstances where the Applicant reoffended after his visa was reinstated (after it was cancelled the first time) and he was issued a formal written warning regarding the consequences of further offending in terms of his migration status: paragraph 8.1.1(1)(h) of Direction No. 110. In short, the information and evidence before the Tribunal on the risk of the Applicant reoffending weighs heavily against revocation: paragraph 8.1.2(2)(b)(i) of Direction No. 110.
Further, as stated above, the evidence before the Tribunal demonstrates that the Applicant has a long way to go in terms of participating in and completing rehabilitation courses which address his illicit drug use, which without doubt the underlying cause of his serious conduct/offending to date. The Tribunal considers, based on all the evidence before it, and especially the Applicant’s long history of substance abuse, that he is simply too early in his rehabilitation journey not to objectively pose a serious risk to the safety of the Australian community, noting that the “safety of the Australian community is the highest priority of the Australian Government”: paragraph 8.1 of Direction No. 110.
Conclusion – “Protection of the Australian community”
For the above reasons, having had regard to:
(i)the nature and seriousness of the Applicant’s conduct: paragraph 8.1.1 of Direction No. 110; and
(ii)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction No. 110,
the Tribunal finds that the first “primary consideration” (“Protection of the Australian community”), in paragraph 8.1 of Direction No. 110, weighs strongly against revocation of the visa cancellation decision.
(ii) Family violence committed by the non-citizen
Paragraph 8.2 of Direction No. 110 provides that the Tribunal must have regard to “family violence” perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
“Family violence” is defined in paragraph 4(1) of Direction No. 110 to mean:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
……
f) intentionally damaging or destroying property; or
In the “Detected Incidents Report” of the Western Australia Police Force, dated 16 August 2017, it is reported that the police attended the scene of a family violence incident involving the Applicant and his father.[73] The Applicant's father advised the police that he had an argument with the Applicant as he did not wish for him to drive in circumstances where his license was suspended. It is reported that the argument ended when the Applicant picked up a pot plant and broke it over a small tabletop, causing dirt to shower over the table floor and nearby bookshelf. Under the heading “7. Risk Factors”, the report records that the Applicant’s father (the “victim”) was “frightened” at the time of attending the scene of the incident and that the Applicant was “believed to be using heroin”.
[73] Exhibit 2, S21, page 105.
While the Applicant was not charged with any family violence offence, the Tribunal considers this conduct could be considered as “family violence”, as defined in paragraph 4(1) of Direction No. 110 as it is conduct which involved “intentionally damaging or destroying property” in a manner which caused a member of the Applicant's family, being his father, to be fearful. However, the Tribunal considers that if the Applicant’s conduct, on 16 August 2017, does, in fact, constitute “family violence”, within the meaning of the definition in paragraph 4(1) of Direction No. 110, it would fall within the “lower range” of the types of “Examples”, provided by the Government in Direction No. 110, of what represents “family violence”. The “Examples” provided by the Government of what are “family violence” include assault, sexual assault and stalking. In this case, the Applicant broke a pot plant over a small tabletop during an argument with his father (who was trying to stop the Applicant from committing a further driving/traffic offence at the time). There is clearly a marked difference between the act of breaking a pot plant over a small tabletop during an argument between a son and his father (without physical contact) and assault or sexual assault.
For the above reasons, the Tribunal considers that this second “primary consideration” (“Family violence committed by the non-citizen”), in paragraph 8.2 of Direction No. 110, weighs moderately against revocation of the visa cancellation decision.
(iii) The strength, nature and duration of ties to Australia

Paragraph 8.3 of Direction No. 110 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant (currently aged 35) came to Australia in September 2009, aged 19. He has lived in Australia for 15 years.[74] Given that the Applicant arrived in Australia as an adult, he did not spend his formative years in Australia and has lived most of his life outside Australia. It is noteworthy that the Applicant began offending, in November 2010, just over a year after arriving in Australia and continued to offend ever since.
[74] Exhibit 2, G15, page 103.
Immediate family in Australia
The Applicant's immediate family in Australia comprise his mother and father, his four siblings (three sisters and one brother) and his two sons.[75] The Applicant also has a brother-in-law (the husband of his youngest sister) and a minor niece and nephew (the children of his youngest sister and brother-in-law) living in Australia.
[75] Exhibit 2, G11, pages 72, 74, and 76.
In his Revocation Request, the Applicant states that he loves his parents and siblings (his immediate family) in Australia and “they can’t see [him] getting deported to some country that [he] never lived before (sic.)” and that his immediate family has "very strong roots and are united at all time."[76] The Applicant further states that he has a good relationship with his ex-partner, who is the mother to his two sons.
[76] Exhibit 2, G11, page 77.
In his Pre-hearing Submissions the Applicant states[77]:
[77] Exhibit 1.
- Family and children:
my whole family live in Australia. We came to Australia in sep. 2009 and we lived here ever since. I have three sisters and one brother. My Two younger sister are going to uni and they are very good. my other older sister is married and have to kids and she is a very successful business owner. My little brother is a butcher and he also knows painting houses. My mom and dad also work few days a week. My life and my family is in Australia. I have two boys with my ex partner. I Know I haven’t been around them as much as I wanted to but I love my boys. In my culture family is always close and my mom and dad have been loving to us kids and the same way I have a lot of love to give to my boys. I want to see my kids grow old and go to school and sit down with them have dinner and taking them out fishing and do everything they like. I know my kids will need me because maybe other people can provide food and stuff for them but the love I can give them to my boys no one else can give them. yes I have made a lot’s of mistake but my kids are not one of them. I can tell you that when I was with my boys everyday was like the best day of my life and It’s true. Just looking at them playing and talking makes my day. Every time I finish work and go home seeing them at the door waiting for me was just the best of my Memory I have in my life.
So yes, my family is very important for me and I know that they feel that same about me. I can’t imagine life without them and I will be a better person in future for them and for a better life for myself.
The Applicant’s “family” provided the following reference in support of the Applicant’s review application:[78]
We are writing to express our wholehearted support for [the Applicant]. He is a valued family member known for his integrity and dedication. Our bond remains strong, and we support him through many milestones.
[The Applicant] is a good person, he has made some mistakes in his past but has since realised them and is aware his actions were wrong. He is committed to make a change in his life. He has two beautiful children that love him and have a deep bond with. He would like to be present in their life as they grow, to nurture and to provide them with support and guidance.
[78] Exhibit 2, HB1.
When asked, in cross-examination, why none of his immediate family appeared at the hearing and gave evidence, the Applicant said that all his family, except his father, had returned to Iran for a period due to the imminent death of his grandfather and that his father was too old and unwell to attend the hearing and give evidence
Work and social ties in Australia
The Applicant completed year 12 in Australia and, subsequently, a panel beating apprenticeship, and has worked as a panel beater and in construction (with four different employers) from 2012 to 2023.[79]
[79] Exhibit 2, G11, page 80.
The evidence before the Tribunal indicates that he has been gainfully employed as a panel beater or in construction in Australia for 12 years (with four different employers).[80]
[80] Exhibit 2, G11, page 80; paragraph 8.3(2)(a)(ii) of Direction 110.
- My work and life in Australia
I finished year 12 in Iran and when I came here I went to Tafe I did some English courses and then I started my Apprenticeship as a panel beater and I have been working as a panel beater ever since. I love my job and I am a good worker. my dream is to one day have my own panel shop and be successful. My life in Australia has been grate apart from the mistakes that I made braking law and getting in trouble with the police. coming to here was a big thing for my family and I. I was 19 and everything was so different here. I could do things that I never imagined doing in Iran. This change plus missing my friends back in Iran at that time lead me to make some friends that was not good for me at all I was despised to make friends and be like everyone else and I didn’t make good friends I must say. So I do know that I have made too many mistakes and I have lot’s of little charges and I won that and I can only say I have learnt from that all and I own that and I will be a better person. Drug was a big problem in my life here and I have been working on myself in jail and I will continue doing this outside jail one day.
In his Personal Circumstances Form,[81] the Applicant states that his ex-partner (with whom he shares two children/sons) would “[definitely] be effected (sic.)” if he was unable to remain in Australia and comments that they “still have some feelings for each other”.
[81] Exhibit 2, G11.
For the above reasons, the Tribunal considers that the third “primary consideration”, in paragraph 8.3 of Direction No. 110 (i.e. “The strength, nature and duration of ties to Australia) weighs strongly in favour of revocation of the visa cancellation decision.
(iv) Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must determine whether cancellation or refusal under s 501 of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction No. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant, as follows:[82]
[82] Direction No. 110 para 8.4(4)(a)-(h).
a)the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two minor sons (Son 1, aged 5 and Son 2, aged 2). He submits that they will be negatively impacted if his visa cancellation is not revoked.[83] He states that his children were under the care of DOC which was due to end a few months from May 2024.[84]
[83] Exhibit 2, G11, page 74 – 75.
[84] Exhibit 2, G11, page 75.
On 3 February 2020, a two year protection order was granted in relation to Son 1 while the Applicant and his ex-partner and mother of Son 1 were incarcerated.[85] Following his release from prison in or around May 2020,[86] the Applicant maintained regular contact with Son 1 (under the supervision of the Applicant’s ex-partner and mother of Son 1), and on 30 July 2021, Son 1 transitioned into the care of the Applicant and his ex-partner.[87]
[85] Exhibit 2, S33, page 350.
[86] Exhibit 2, S8, page 31.
[87] Exhibit 2, S26, 243, 246
On 11 August 2022, the Western Australia Police made a referral to the Department of Communities for a child safety investigation (CSI) following a disturbance at the Applicant's home.[88] Police attended to assist a St John Ambulance in treating the Applicant, who had been discovered unconscious by his ex-partner's brother who was performing a wellness check on the Applicant's children. The Applicant subsequently disclosed that he had taken “a large number of prescribed drugs.”[89] The Applicant's children were reported to be present and unsupervised during this incident.[90]
[88] Exhibit 2, S28, pages 294 – 295.
[89] Exhibit 2, S28, page 295.
[90] Exhibit 2, S28, page 295.
Following this incident, the DOC conducted a CSI and subsequently took the Applicant's children into provisional protection and care pursuant to s 37 of the Children and Community Services Act 2004 (WA).[91] In connection with this CSI, the Applicant's ex-partner advised that she and the Applicant only used drugs together when their children were asleep. However, the Applicant's brother-in-law advised the police that some days they would sleep in until the early hours of the afternoon and would not otherwise feed or care for their children until they woke up.[92] When invited to comment on the ongoing CSI on 30 August 2022, the Applicant advised the DOC that he was “happy with this outcome” and that “he understood the decision that was being made and the impact that substance use had on the children”'[93]
[91] Exhibit 2, S30, page 309.
[92] Exhibit 2, S30, page 307.
[93] Exhibit 2, S30, page 310.
On 9 January 2023, the DOC suspended contact between the Applicant and his children following three consecutively missed visits.[94] On 26 March 2024, the previous protection orders, concerning the children, expired and, on 2 April 2024, interim orders were made to return the children to the protective custody of the DOC.[95]
[94] Exhibit 2, S31, page 322.
[95] Exhibit 2, S33, page 354.
Based on the evidence, the Tribunal considers that the Applicant's parental relationship with his children has been inconsistent and of limited duration. The Applicant maintained custody of his children for a period of approximately 12-months between his incarceration for Aggravated Burglary and the wellness check incident referred to above.
During this period, the Applicant reportedly continued to engage in consuming drugs in the presence of his minor children, despite purporting to understand the impact that this behaviour had upon them. Notwithstanding that the Applicant's children were reported to be well and happy following the referral incident, the Applicant's behaviour during this period led to neglect of the care requirements of his two minor children.
While the Tribunal understands that any separation would likely impact Son 1’s and Son 2’s ability to maintain contact with the Applicant, in circumstances where the Applicant has taken hard drugs with his ex-partner (while his two young sons were at home) and failed to attend arranged visitations on numerous occasions, the Tribunal considers that this factor should be given only moderate weight in favour of revocation of the visa cancellation decision.
The Applicant also identifies his niece (age 1) and nephew (age 3) who are his youngest sister's children as other minor children in his life.[96] As the Applicant does not play a parental role for these children, the Tribunal finds that limited weight should be afforded to the Applicant’s minor niece and nephew as a factor in favour of revocation of the visa cancellation decision.[97]
[96] Exhibit 2, G11, pages 76-77.
[97] Paragraph 8.4(4)(e) of Direction 110.
For the above reasons, this fourth “primary consideration”, in paragraph 8.4 of Direction No. 110 (i.e. “Best interests of minor children in Australia affected by the decision”) weighs moderately in favour of the revocation of the visa cancellation decision.
(v) Expectations of the Australian Community
Paragraph 8.5(1) of Direction No. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a “norm”, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) of Direction No. 110 directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) of Direction No. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a) to (f) of Direction No. 110. Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered “very seriously” or “serious”.
Paragraph 8.5(3) of Direction No. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, paragraph 8.5(3) arguably further qualifies the “norm” expressed in paragraph 8.5(1), which refers to the “unacceptable risk”’ of conduct being engaged in. This makes it clear that a “measurable risk” of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This primary consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
In weighing this consideration, the Tribunal is also guided by the “Principles” in paragraph 5.2 of Direction No. 110 which states that:
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to….forfeit the privilege of staying in, Australia.
Paragraph 5.2(4) of Direction No. 110 expresses a principle similar to paragraph 8.5(3) of Direction No. 110 with respect to “serious character concerns” and makes it clear that those concerns are not restricted to circumstances where there is a “measurable risk” of physical harm to the Australian community.
The Tribunal finds, in observing the “norm” stipulated in paragraph 8.5(1) of Direction No. 110, that the Australian community would expect that the Applicant should not hold a Five Year Resident Return visa (Class BB) (Subclass 155) because of the serious crimes he has committed, the repetition of which would have potentially serious consequences (a cumulative effect) on members of the Australian community: see [32] to [45] above and paragraph 8.5(2)(c) of Direction No. 110.
Whilst the Applicant has not specifically engaged in conduct of the kind in paragraphs 8.5(2)(a) to (f) of Direction No.110, it is clear from the words “conduct…of the following kind”, in paragraph 8.5(2) of Direction No. 110 that that list is not intended to be exhaustive. The Tribunal has found the Applicant has engaged in “serious” and “very serious” drug and other offending. This raises serious character concerns and the Tribunal finds the Australian community would expect that the Applicant’s visa should remain cancelled.
For the above reasons, the Tribunal considers that this fifth “primary consideration”, in paragraph 8.5 of Direction No. 110 (i.e. “Expectations of the Australian Community”) weighs strongly against revocation of the visa cancellation decision.
Other considerations – paragraph 9 of Direction No. 110
Paragraph 9 of Direction No. 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA (4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
(i) Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision not to revoke the mandatory cancellation of a visa on a non-citizen. Paragraph 9.1 of Direction No. 110 states:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful citizen.

However s 197C(3) provides that s 198 of the Migration Act does not require or authorise removal of a person to a country in relation to which a “protection finding” has been made while considering a protection visa application by the person, except in the circumstances set out in s 197C(3)(c). A “protection finding”, as defined for the purpose of s197C(3) of the Act, made while considering a protection visa application from a non-citizen, means that Australia will not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The concept of “protection obligations”, in the Migration Act, reflects Australia’s interpretation of its non-refoulement obligations and the scope of such obligations that Australia is committed to implementing.
If circumstances change, a reassessment of a protection finding can be made under s 197D of the Migration Act. A decision that the person was no longer a person in respect of whom a protection finding could be made, means that the person no longer engaged Australia’s on-refoulement obligations and that s 197C(3) of the Migration Act no longer applied to the person.
If The Applicant claims that he may face harm should he be removed to Afghanistan.[98]
[98] Exhibit 2, G11, page 82.
In the Revocation Request, under the heading “13. Return to Your Country of Citizenship”, in response to the question “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”, the Applicant ticked “Yes” and proceeded to describe those concerns as follows[99]:
First of all I have never been to Afghanistan I don’t know anything about how things works there. I haven’t met my distance family that I have there and I don’t think I can survive there at all. Taliban back in power even [worse] nor for my people Hazara!!
[99] Exhibit 2, G11, page 82.
…..I don’t know what the government [does] to people like me.
In the Pre-hearing Submissions the Applicant states[100]:
- Taliban is back in power:
[100] Exhibit 1.
These days in Afghanistan Taliban is in power. When you hear the word Taliban what is the first thing come to your mind. for me the first thing that comes in my mind is death, war, people getting killed and the poor people of Afghanistan that have to live such a life. If I do get deported back to Afghanistan I don’t know what will they do or how they react to people that are coming to Afghanistan from a [foreign country] like Australia with all the war crime stuff that is made news everywhere. I am sure that you are aware of that also I don’t know what to expect they might think that I am an Australian spy or anything. I know that my life will be in danger and its not a joke. I am a Hazara and Shiea muslims and in the past Taliban have been targeting my people simply because[e] of we look [different] and they [believe] we don’t belong to Afghanistan. my dad says long time ago about 70% of our people was wiped out by the Pashtons the same people that are in the Taliban regim[e]. So I do fear for my life if I go there. I think if I go there It’s like you sending me to be killed in there.
Therefore, the Applicant has claims that Australia's non-refoulement obligations may be engaged if the visa cancellation decision is not revoked.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 (Plaintiff M1), the High Court of Australia clarified the approach to consideration of representations involving claims of non-refoulement. Relevantly, the majority judgment held as follows (at [28]–[30] per Kiefel CJ, Keane, Gordon and Stewart JJ):
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(emphasis added)
The Tribunal understands the Applicant's claim of non-refoulement to be one made under domestic law. That being so, [30] of Plaintiff M1 is applicable, and while it is open to the Tribunal to consider the Applicant's claims, an “available outcome” is to defer assessment of whether the applicant is owed non-refoulement obligations as it is open to the Applicant to apply for a protection visa.[101] The Tribunal considers that this is the appropriate course of action to take in the present matter given it is open to the Applicant to apply for a protection visa and his claims could be more fully assessed in a protection visa assessment.
[101] Paragraph 9.1.2(2) of Direction 110.
Indeed, as set out in paragraph 9.1.2 of Direction 110:
(1)Claims which may give rise to international non-refoulement obligations can also be raise by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(emphasis added)
As the majority held in Plaintiff M1 at [24]–[25], the Tribunal must “read, identify, understand and evaluate” the representations made by the Applicant, with the requisite level of engagement depending on the nature, form and content of the representations. However, the Tribunal is not required in every case to make a positive finding whether claimed harm will occur. The Applicant is not currently the subject of a protection finding but may apply for a protection visa. If the Applicant makes a protection visa application, his claims regarding Australia’s non-refoulement obligations will be properly and fully assessed as part of that process.
Accordingly, the Tribunal places limited weight in favour of revocation of the visa cancellation decision on the “other consideration”, in paragraph 9.1 of Direction No. 110 (“Legal consequences of the decision”): Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 per Rangiah J at [37] to [42].
(ii) Extent of impediments if removed
Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110 are:
(a)The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
Applicant’s age and health
The Applicant is 34 years old and states that his GP diagnosed him with depression and anxiety.[102] However, there is no medical evidence to indicate any health diagnosis. Further, the sentencing remarks of the sentencing judge, for the 2023 Offending, indicate that, based on the testing undertaken by Ms Lyn, a psychologist, there are no current concerns regarding depression, anxiety and stress in relation to the Applicant.
[102] Exhibit 2, G7, page 51.
Whether there are substantial language or cultural barriers
The Applicant submits that although he is an Afghani citizen, he was born and raised in Iran and has never been to Afghanistan.
In the Pre-hearing Submissions the Applicant states[103]:
[103] Exhibit 1.
- I have never been in Afghanistan
I was born and raised in Iran until the age of 19 then we came to Australia. I have never been in Afghanistan. I have only seen Afghanistan on the news or the TV programs and the movies. As long as I remember there was only news about war and people escaping and the horrible thing that happens in there. If I get deported to Afghanistan I don’t know where to go or where to start. I don’t have anyone in there I don’t know who to trust. There’s a very different world in there. I don’t even know how to find a job. The people that live in there don’t have a job and poverty is everywhere I don’t know how I can find a job. I don’t know where to live. It’s gonna be so different its not like you go from Afghanistan to Australia or America where you can get help from everywhere like outcare or centercare or centerlink medicare and so on over there is different you can’t have any of that because there’s none.
The Tribunal accepts that the Applicant is likely to face significant obstacles if he were to return to Afghanistan, including substantial language and cultural barriers. The Applicant is a relatively young man, but since he was born and raised in Iran, and has never lived in Afghanistan, he will undoubtedly face language or cultural barriers in Afghanistan.
Social, medical and/or economic support available in Afghanistan
The Applicant may have difficulty in establishing himself and maintaining basic living standards in Afghanistan.[104] However, as stated above, the Applicant is still relatively young and his work skills and experience in Australia as a panel beater (and, in more recent times, his abattoir/butchery experience at Karnet Prison Farm) should assist him in obtaining employment in Afghanistan if he is returned there, which should ameliorate the economic hardship of his removal.
[104] Paragraph 9.2(1) of Direction 110.
The Applicant’s hardship is likely to be further exacerbated by the negative impacts that relocating to Afghanistan will also have on him and his immediate family, if he is removed to Afghanistan, including a potential negative impact on his mental health. The Tribunal acknowledges that the Applicant has never lived in Afghanistan and his immediate family and social and support networks are in Australia, none of which is ideal.
While the security, political and economic situation in Afghanistan will present challenges for the Applicant, particularly noting his status as a Hazara, he will have access to the same level of social, medical and economic support as what is generally available to other citizens of Afghanistan.[105]
[105] Paragraph 9.2(1)(c) of Direction 110.
The Applicant's claims to fear harm in Afghanistan, which have been considered above, in the context of paragraph 9.1 of Direction No. 110 (i.e. “Legal consequences of the decision”) and Australia’s non-refoulement obligations, are also relevant to the other consideration in paragraph 9.2 of Direction No. 110 (i.e. “Extent of impediments if removed”).[106] The Tribunal considers that if the Applicant is returned to Afghanistan, there is a possibility that he would face a degree of discrimination due to his Hazara ethnicity.
[106] Plaintiff M1 at [39].
Accordingly, the Respondent accepts that the “other consideration”, in paragraph 9.2 of Direction No. 110 (i.e. “Extent of impediments if removed”), weighs strongly in favour of revocation of the visa cancellation decision.
(iii) Impact on Australian business interests
Paragraph 9.3 of Direction No. 110 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of the impact on Australian business interests of the Applicant is removed or regarding any major project or important service that will be compromised by a decision not to revoke the cancellation decision. In his oral evidence at the hearing the Applicant said that if he was released into the Australian community he would easily find work as a panel beater, but that his real dream is to one day start his own panel beating shop with his brother. Alternatively, through the work experience he has gained at the abattoir at Karnet Prison Farm, he could work with his sister at her butcher shop. However, neither of these things have happened yet.
Accordingly, the “other consideration”, in paragraph 9.3(1) of Direction No. 110, does not weigh in favour of, or against, revocation of the visa cancellation decision but, rather weighs neutrally in relation to whether the visa cancellation decision should be revoked.
CONCLUSION
The Applicant does not pass the “character test” under s 501(6) of the Migration Act because he has a “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act because he has been “sentenced to a term of imprisonment or 12 months or more.”
Therefore, the central issue before the Tribunal is whether there is “another reason” to revoke the cancellation of the applicant’s visa. In that regard, and in reference to each of the primary and other considerations in Direction No. 110, the Tribunal finds that the following weights should be attributed to each of the “primary considerations” and “other considerations” in Direction No. 110:
·     First “primary consideration”: “Protection of the Australian community from criminal or other serious conduct” (paragraph 8.1 of Direction No. 110) – this primary consideration weighs strongly against revocation of the visa cancellation decision;
·     Second “primary consideration”: “Whether conduct engaged in constituted family violence” (paragraph 8.2 of Direction No. 110) – this primary consideration weighs moderately against revocation of the visa cancellation decision, to a limited extent;
·     Third “primary consideration”: “The strength, nature and duration of ties to Australia” (paragraph 8.3 of Direction No. 110) – this primary consideration weighs strongly in favour of revocation of the visa cancellation decision;
·     Fourth “primary consideration”: “The best interests of minor children” (paragraph 8.4 of Direction No. 110) – this primary consideration weighs moderately in favour of revocation of the visa cancellation decision;
·     Fifth “primary consideration”: “Expectations of the Australian community” (paragraph 8.5 of Direction No. 110) – this primary consideration weighs strongly against revocation of the visa cancellation decision;
·     First “other consideration”: “Legal consequences of the decision” (paragraph 9(1)(a) of Direction No. 110) – limited weight in favour of revocation of the visa cancellation decision is placed on this other consideration;
·     Second “other consideration”: “Extent of impediments if removed” (paragraph 9(1(b) of Direction No. 110) – this other consideration weighs strongly in favour of revocation of the visa cancellation decision; and
·     Third “other consideration”: “Impact on Australian business interests” (paragraph 9(1)(c) of Direction No. 110) - neutral weight is placed on this other consideration in relation to whether the visa cancellation decision should be revoked.
Based on the weight the Tribunal has attributed to the “primary considerations” and “other considerations”, as set out immediately above, the Tribunal is not satisfied that, on balance, there is “another reason” that the decision to cancel the Applicant’s should be revoked: s 501CA(4)(ii) of the Migration Act.
In reaching this conclusion, the Tribunal is mindful of the “Principles” in paragraph 5.2 of Direction No. 110 (referred to above at [28]) and paragraph 7(2) of Direction No. 110 which states that the “primary considerations” should generally be given greater weight than the “other considerations” and, further, that the “primary consideration” in paragraph 8.1 of Direction No. 110 (Protection of the Australian community) is generally to be given greater weight than the other “primary considerations” and that “primary considerations” should generally be given greater weight than the “other considerations”.
DECISION
For the above reasons, the Tribunal affirms the decision of the delegate of the Minister, dated 8 November 2024, not to revoke the cancellation of the Applicant’s visa.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Lyford

....................[SGD]....................................................
Associate
Dated: 4 February 2025

Date of hearing: 20 January 2025

Applicant’s Representative:
Self-Represented

Respondent’s Representative:
Ms Felicidade Lay of Minter Ellison

ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 20 March 2024.[107]
[107] Exhibit 2, G6, pages 43 – 45.

Conviction Date Court Offence Offence Date(s) Court Result

1.    23 January 2024 Perth District Court of Western Australia Possess Methylamphetamine with intent to sell/supply 7 January 2023 Imprisonment: 2 years

2.    23 January 2024 Perth District Court of Western Australia Possession of prohibited drugs with intent to sell or supply 7 January 2023 Imprisonment: 6 months

3.
16 May

2023
Armadale Magistrates Court Unlawfully possessed a controlled or prescription drug; Medicines and Poisons Act 2014; 14(4) 16 May 2023 Fine: $500

4.
20 August

2019
Perth Magistrates Court No authority to drive - suspended 4 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

5.
20 August

2019
Perth Magistrates Court No authority to drive - suspended 7 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

6.
20 August

2019
Perth Magistrates Court No authority to drive - suspended 8 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

7.
20 August

2019
Perth Magistrates Court Reckless driving 10 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

8.
20 August

2019
Perth Magistrates Court No authority to drive – suspended 9 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

9.
20 August

2019
Perth Magistrates Court No authority to drive – suspended 10 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

10.
20 August

2019
Perth Magistrates Court Stealing; Criminal Code (WA) 378 7 March 2019 Fine: $500 (global)

11.
20 August

2019
Perth Magistrates Court Stealing; Criminal Code (WA); 378 8 March 2019 Fine: $500 (global)

12.
20 August

2019
Perth Magistrates Court Stealing Criminal Code (WA); 378 9 March 2019 Fine: $500 (global)

13.
20 August

2019
Perth Magistrates Court Steal motor vehicle and drives or assumes control without consent.; Criminal Code (WA); 378F 4 March 2019
Imprisonment: 8 months

Concurrent from 20 August 2019

14.
20 August

2019
Perth Magistrates Court Stealing; Criminal Code (WA); 378 4 March 2019
Imprisonment: 4 months

Concurrent from 20 August 2019

15.
20 August

2019
Perth Magistrates Court No authority to drive – suspended 10 March 2019
Imprisonment: 5 months

Disqualified: 9 months

Concurrent from 20 August 2019

16.
15 August

2019
Perth District Court of Western Australia Aggravated robbery; Criminal Code (WA; 392(d) 15 August 2019 Imprisonment: 16 months

17. 24 December 2018 Perth Magistrates Court No authority to drive – suspended
30 October 2018

Fine: $1500

Disqualified: 9 months

18.
2 May

2018
Midland Magistrates Court No authority to drive – suspended
6 April 2018

Fine: $1000

Disqualified: 9 months

19.
20 March

2018
Armadale Magistrates Court No authority to drive (fines suspended) 6 January 2018 Fine: $400

20.
11 August

2017
Perth Magistrates Court No authority to drive (fines suspended) 22 June 2017 Fine: $400

21.
10 March

2016
Perth Magistrates Court No authority to drive (fines suspended) 29 January 2016 Fine: $200

22.
21 August

2013
Perth Magistrates Court No authority to drive – Suspended 20 June 2016
Fine: $1000

Disqualified: 9 months

23.
8 May

2013
Perth Magistrates Court Stealing; Criminal Code (WA); 378 20 December 2012 Fine: $600

24. 28 September 2012 Perth Magistrates Court No authority to drive – suspended 29 August 2012
Fine: $400

Disqualified: 9 months

25.
27 July

2012
Perth Magistrates Court Exceed 0.02g alcohol per 100ml of blood 13 May 2012
Fine: $150

Disqualified: 3 months

26. 25 October 2011 Perth Magistrates Court Took part in an unlawful assembly: Criminal Code (WA); 63 9 October 2011 Fine: $700

27.
12 April

2011
Perth Magistrates Court Unauthorised driving by learner drivers 5 March 2011 Fine: $250

28. 3 December 2010 Perth Magistrates Court Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a) 12 November 2010 Fine: $500

29. 30 November 2010 Perth Magistrates Court Unauthorised driving by learner drivers 24 September 2010 Fine: $150

Date of hearing:	20 January 2025
Applicant’s Representative:	Self-Represented
Respondent’s Representative:	Ms Felicidade Lay of Minter Ellison

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	23 January 2024	Perth District Court of Western Australia	Possess Methylamphetamine with intent to sell/supply	7 January 2023	Imprisonment: 2 years
2.	23 January 2024	Perth District Court of Western Australia	Possession of prohibited drugs with intent to sell or supply	7 January 2023	Imprisonment: 6 months
3.	16 May 2023	Armadale Magistrates Court	Unlawfully possessed a controlled or prescription drug; Medicines and Poisons Act 2014; 14(4)	16 May 2023	Fine: $500
4.	20 August 2019	Perth Magistrates Court	No authority to drive - suspended	4 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
5.	20 August 2019	Perth Magistrates Court	No authority to drive - suspended	7 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
6.	20 August 2019	Perth Magistrates Court	No authority to drive - suspended	8 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
7.	20 August 2019	Perth Magistrates Court	Reckless driving	10 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
8.	20 August 2019	Perth Magistrates Court	No authority to drive – suspended	9 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
9.	20 August 2019	Perth Magistrates Court	No authority to drive – suspended	10 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
10.	20 August 2019	Perth Magistrates Court	Stealing; Criminal Code (WA) 378	7 March 2019	Fine: $500 (global)
11.	20 August 2019	Perth Magistrates Court	Stealing; Criminal Code (WA); 378	8 March 2019	Fine: $500 (global)
12.	20 August 2019	Perth Magistrates Court	Stealing Criminal Code (WA); 378	9 March 2019	Fine: $500 (global)
13.	20 August 2019	Perth Magistrates Court	Steal motor vehicle and drives or assumes control without consent.; Criminal Code (WA); 378F	4 March 2019	Imprisonment: 8 months Concurrent from 20 August 2019
14.	20 August 2019	Perth Magistrates Court	Stealing; Criminal Code (WA); 378	4 March 2019	Imprisonment: 4 months Concurrent from 20 August 2019
15.	20 August 2019	Perth Magistrates Court	No authority to drive – suspended	10 March 2019	Imprisonment: 5 months Disqualified: 9 months Concurrent from 20 August 2019
16.	15 August 2019	Perth District Court of Western Australia	Aggravated robbery; Criminal Code (WA; 392(d)	15 August 2019	Imprisonment: 16 months
17.	24 December 2018	Perth Magistrates Court	No authority to drive – suspended	30 October 2018	Fine: $1500 Disqualified: 9 months
18.	2 May 2018	Midland Magistrates Court	No authority to drive – suspended	6 April 2018	Fine: $1000 Disqualified: 9 months
19.	20 March 2018	Armadale Magistrates Court	No authority to drive (fines suspended)	6 January 2018	Fine: $400
20.	11 August 2017	Perth Magistrates Court	No authority to drive (fines suspended)	22 June 2017	Fine: $400
21.	10 March 2016	Perth Magistrates Court	No authority to drive (fines suspended)	29 January 2016	Fine: $200
22.	21 August 2013	Perth Magistrates Court	No authority to drive – Suspended	20 June 2016	Fine: $1000 Disqualified: 9 months
23.	8 May 2013	Perth Magistrates Court	Stealing; Criminal Code (WA); 378	20 December 2012	Fine: $600
24.	28 September 2012	Perth Magistrates Court	No authority to drive – suspended	29 August 2012	Fine: $400 Disqualified: 9 months
25.	27 July 2012	Perth Magistrates Court	Exceed 0.02g alcohol per 100ml of blood	13 May 2012	Fine: $150 Disqualified: 3 months
26.	25 October 2011	Perth Magistrates Court	Took part in an unlawful assembly: Criminal Code (WA); 63	9 October 2011	Fine: $700
27.	12 April 2011	Perth Magistrates Court	Unauthorised driving by learner drivers	5 March 2011	Fine: $250
28.	3 December 2010	Perth Magistrates Court	Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a)	12 November 2010	Fine: $500
29.	30 November 2010	Perth Magistrates Court	Unauthorised driving by learner drivers	24 September 2010	Fine: $150